Exhibit 10.2
FIRST AMENDMENT AND CONSENT TO
FOURTH AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
This FIRST AMENDMENT AND CONSENT TO FOURTH AMENDED AND RESTATED REVOLVING
CREDIT AND TERM LOAN AGREEMENT, dated as of March 27, 2001 (this "Amendment"),
by and among EMMIS COMMUNICATIONS CORPORATION, an Indiana corporation (the
"Borrower"), TORONTO DOMINION (TEXAS), INC., as administrative agent (the
"Administrative Agent"), FLEET NATIONAL BANK (f/k/a BankBoston, N.A.), as
documentation agent (the "Documentation Agent"), FIRST UNION NATIONAL BANK, as
syndication agent (the "Syndication Agent"), Credit Suisse First Boston, as
co-documentation agent (the "Co-Documentation Agent", and together with the
Administrative Agent, the Documentation Agent, and the Syndication Agent, the
"Agents"), and the lending institutions which are or may become parties to the
Credit Agreement (as defined below) from time to time (collectively, the
"Lenders"). Capitalized terms used herein without definition shall have the
meanings assigned to such terms in the Credit Agreement referred to below.
WHEREAS, the Borrower, the Lenders and the Agents are parties to a Fourth
Amended and Restated Revolving Credit and Term Loan Agreement, dated as of
December 29, 2000 (as amended and in effect from time to time, the "Credit
Agreement"), pursuant to which the Lenders have made loans and otherwise
extended credit to the Borrower on the terms and subject to the conditions set
forth therein;
WHEREAS, the Borrower, the Lenders and the Agents have agreed to modify
certain terms and conditions of the Credit Agreement as specifically set forth
in this Amendment;
NOW THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Borrower, the Lenders and the Agents hereby agree as follows:
ss.1. Amendments toss.1.1 of the Credit Agreement. (a) Section 1.1
---------- -------- -- --- ------ ---------
of the Credit Agreement is hereby amended by adding the following new
definitions to suchss.1.1 in alphabetical order:
"Confidential Offering Circular. The Confidential Offering Circular,
dated March 21, 2001, with respect to the public offering of the Senior
Discount Notes by Emmis Escrow."
"Emmis Escrow. Emmis Escrow Corporation, an Indiana
--------------
corporation and a wholly-owned Subsidiary of Emmis Escrow
Holding."
"Emmis Escrow Holding. Emmis Escrow Holding Corporation, an
--------------------
Indiana corporation and a wholly-owned Subsidiary of the
Borrower."
"Escrow Amount. That amount equal to the gross proceeds received by
Emmis Escrow from the issuance of the Senior Discount Notes less (i) all
costs and expenses incurred by the Borrower and Emmis Escrow in connection
with such issuance and (ii) the portion of such proceeds in an amount not
to exceed $100,000,000 which is applied by Emmis Escrow to purchase
preferred stock issued by Emmis Escrow Holding and, in turn, applied by
Emmis Escrow Holding to purchase the Internal Preferred Stock."
"Escrow Merger. The proposed merger of Emmis Escrow Holding and Emmis
Escrow with and into the Borrower, with the Borrower being the surviving
company, on or prior to July 26, 2001."
"Exchangeable Preferred Stock. Preferred stock of the Borrower to be
issued to the holders of the Senior Discount Notes in exchange for the
Senior Discount Notes in the event that the Holding Company Reorganization
and the Escrow Merger are not consummated on or prior to July 25, 2001."
"First Amendment. The First Amendment and Consent, dated as
---------------
of March 27, 2001, to this Credit Agreement."
"HoldCo Corporate Overhead Expenses. In the event that the requisite
percentage of the Lenders have consented to the Holding Company
Reorganization, then following the Holding Company Reorganization, the
term "HoldCo Corporate Overhead Expenses" shall mean (i) fees payable to
the trustee under the Senior Discount Note Indenture, (ii) accounting and
audit costs and expenses incurred by the parent holding company of the
Borrower in the ordinary course of its business in connection with
preparing consolidated and consolidating financial reports and tax
filings, (iii) SEC filing fees and expenses, (iv) legal fees relating to
the corporate maintenance of the parent holding company of the Borrower,
(v) outside director fees, (vi) costs and expenses payable for director
and officer insurance, (vii) transfer agent fees payable in connection
with Capital Stock of the parent holding company of the Borrower, (viii)
proxy solicitation costs, (ix) franchise taxes and other fees payable to
the jurisdiction of incorporation or qualification of such parent holding
company and (x) other similar costs and expenses of the parent holding
company of the Borrower incurred in the ordinary course of conducting its
business; provided, that in no event shall HoldCo Corporate Overhead
Expenses include (i) management fees, salaries, bonuses, debt service and
dividends and other distributions in respect of the Capital Stock of the
parent holding company of the Borrower or (ii) costs and expenses incurred
by the parent holding company of the Borrower in connection with any
actual or proposed issuance of indebtedness or equity by such Person after
the date of the First Amendment."
"Holding Company Reorganization. The proposed corporate restructuring
of the Borrower and its Subsidiaries described in the Confidential
Offering Circular pursuant to which either (i) the Borrower will become a
wholly-owned subsidiary of a holding company or (ii) the Borrower will
transfer all of its assets and liabilities (including its rights and
obligations under this Credit Agreement and the Loan Documents) to a newly
formed subsidiary; provided that the Borrower and the Lenders acknowledge
that such Holding Company Reorganization is subject to receipt of certain
consents from the Lenders which have not been obtained and reference to
such Holding Company Reorganization shall in no way be construed to imply
that such consents have been obtained."
"Internal Preferred Stock. The preferred stock of the Borrower issued
to Emmis Escrow Holding in exchange for up to $100,000,000 which shall be
applied by the Borrower to finance the Hearst-Argyle Transaction."
"Paydown Amount. The Escrow Amount less fees payable to the Agents
and the Lenders in connection with the First Amendment and any consent
pursuant to which the Lenders and the Agents may consent to the Holding
Company Reorganization (it being understood that the Lenders have not
given such consent as of the date of the First Amendment) and any other
costs and expenses incurred by the Borrower in connection with the Credit
Agreement and any amendments or consents required in connection with the
issuance of the Senior Discount Notes and/or the Holding Company
Reorganization; provided that the Paydown Amount shall not be less than
$88,500,000.
"Senior Discount Note Indenture. The Indenture, to be dated as of
March 27, 2001, by and between Emmis Escrow and United States Trust
Company of New York, as trustee thereunder, with respect to the Senior
Discount Notes, as in effect on March 27, 2001 and as the same may be
supplemented, amended or modified from time to time in accordance with the
terms hereof (including, without limitation, ss.11.8 to the extent
applicable) and thereof."
"Senior Discount Notes. The 12 1/2% Senior Discount Notes Due
-----------------------
2011 issued by Emmis Escrow under the Senior Discount Note
Indenture."
"Upstream Date. The earlier of (i) July 26, 2001 and (ii)
--------------
the date on which the transactions required pursuant toss.10.20
occur."
(b) Section 1.1 of the Credit Agreement is hereby further amended by
deleting clause (h) of the definition of "Indebtedness" in its entirety and
substituting in lieu thereof the following new clause (h):
"(h) every obligation of such Person (an "equity related purchase
obligation") to purchase, redeem, retire or otherwise acquire for value
any shares of Capital Stock issued by such Person or any rights measured
by the value of such Capital Stock, provided that "Indebtedness" shall not
include obligations of the Borrower to purchase or redeem (i) shares of
the Exchangeable Preferred Stock or (ii) shares of the Internal Preferred
Stock, so long as in both cases, the Borrower has no obligations to
purchase or redeem such shares prior to 2011 other than upon the
occurrence of a "Change of Control" as defined in the Senior Discount Note
Indenture as in effect on the date hereof."
(c) Section 1.1 of the Credit Agreement is hereby further amended by
deleting the definition of "Interest Coverage Ratio" in its entirety and
substituting in lieu thereof the following definition:
"Interest Coverage Ratio. At any date of determination, the ratio of
(a) Consolidated Operating Cash Flow for the Reference Period most
recently ended to (b) the sum of (i) Consolidated Total Interest Expense
for such Reference Period plus (ii) the aggregate amount of cash dividends
paid on or in respect of the shares of the Exchangeable Preferred Stock
during such Reference Period."
(d) Section 1.1 of the Credit Agreement is hereby further amended by
deleting the definition of "Pro Forma Fixed Charge Coverage Ratio" in its
entirety and substituting in lieu thereof the following definition:
"Pro Forma Fixed Charge Coverage Ratio. At any date of determination,
the ratio of (a) Consolidated Operating Cash Flow for the Reference Period
ending on such date to (b) the sum of (i) Pro Forma Fixed Charges for the
Reference Period commencing on the date following such date of
determination plus (ii) to the extent not otherwise included in Pro Forma
Fixed Charges for the Reference Period commencing on the date following
such date of determination, the aggregate amount of cash dividends which
is required to be paid on or in respect of the shares of the Exchangeable
Preferred Stock during such Reference Period."
ss.2. Amendment to ss.5.3 of the Credit Agreement. Section 5.3 of the
Credit Agreement is hereby amended by deleting the proviso set forth in such
ss.5.3 in its entirety and substituting in lieu thereof the following proviso:
"provided, however, that the Borrower may apply up to $100,000,000 of Net
Cash Equity Issuance Proceeds from the issuance of the Internal Preferred
Stock to finance the Hearst-Argyle Transaction so long as such transaction
is consummated in accordance with the terms of ss.11.5.1(c); and provided,
further, that the Borrower may apply additional Net Cash Equity Issuance
Proceeds in an aggregate amount not to exceed $100,000,000 which the
Borrower or any of its Subsidiaries may receive from Equity Issuances
(other than the issuance of the Internal Preferred Stock or other
issuances related to the issuance of the Senior Discount Notes) to finance
other Permitted Acquisitions, so long as (i) within ninety (90) days of
receipt of such Net Cash Equity Issuance Proceeds, the Borrower identifies
to the Administrative Agent in writing an acquisition permitted under
ss.11.5.1 which will be financed with such proceeds, and (ii) within three
hundred sixty-five (365) days of receipt of such Net Cash Equity Issuance
Proceeds, the Borrower consummates such Permitted Acquisition with all or
a portion of such Net Cash Equity Issuance Proceeds. The Borrower shall in
any event comply with the terms of ss.5.6. Notwithstanding anything to the
contrary set forth in this ss.5.3, on the Upstream Date the Borrower shall
prepay the Loans in the manner set forth in ss.5.5 in an amount equal to
the Paydown Amount."
ss.3. Amendment toss.10 of the Credit Agreement. Section 10 of the
--------- ------- -- --- ------ ---------
Credit Agreement is hereby amended by adding the following newss.10.20
to suchss.10:
"ss.10.20. Senior Discount Note Proceeds. In the event that the
Borrower does not consummate the Escrow Merger on or prior to July 26,
2001, the Borrower will (a) cause Emmis Escrow to distribute to Emmis
Escrow Holding net cash proceeds from the issuance of the Senior Discount
Notes in a minimum amount equal to the Escrow Amount, and (b) cause Emmis
Escrow Holding to distribute to the Borrower such net cash proceeds to be
applied to prepay the Loans in an amount equal to the Paydown Amount, such
prepayment to be applied in accordance with ss.5.5."
ss.4. Amendment to ss.11.1 of the Credit Agreement. Section 11.1 of the
Credit Agreement is hereby amended by adding the following paragraph following
clause (k) of such ss.11.1:
"Notwithstanding anything in this ss.11.1 to the contrary, the Borrower
shall not exercise its option to convert or permit the conversion of the
Exchangeable Preferred Stock to Indebtedness unless such Indebtedness is
to be the sole obligation of a holding company formed pursuant to a
Holding Company Reorganization to the extent such Holding Company
Reorganization is permitted hereunder and none of the Borrower or its
Subsidiaries shall continue to have any obligations in respect thereof."
ss.5. Amendment to ss.11.4 of the Credit Agreement. Section 11.4 of the
Credit Agreement is hereby amended by deleting the text of ss.11.4 in its
entirety and substituting in lieu thereof the following new ss.11.4:
"11.4. Restricted Payments. The Borrower will not, and will not
permit any of its Subsidiaries to, make any Restricted Payments; provided,
however, that:
(a) Subsidiaries of the Borrower may make Restricted Payments to
the Borrower or any wholly-owned Subsidiary of the Borrower;
(b) so long as the payment is permitted by the terms thereof, the
Borrower may make scheduled payments of interest on Subordinated Debt
permitted by ss.11.1(e), provided that the Borrower delivers to the
Administrative Agent a duly executed certificate substantially in the
form of Exhibit G hereto;
(c) so long as no Default or Event of Default shall have occurred and be
continuing or would result from such payment, the Borrower may
declare or pay any scheduled dividend on preferred stock issued by
the Borrower (other than dividends on the Exchangeable Preferred
Stock and Internal Preferred Stock or any preferred stock issued in
exchange for such Exchangeable Preferred Stock or Internal Preferred
Stock), provided that the Borrower delivers to the Administrative
Agent a duly executed certificate substantially in the form of
Exhibit G hereto;
(d) the Borrower may (i) make cash payments to its employees pursuant to
its profit sharing plan, as in effect on the date hereof, in exchange
for fractional shares of the Common Stock and (ii) make payments in
an aggregate amount not to exceed $25,000,000 to repurchase shares of
the Common Stock;
(e) the Borrower may declare or pay dividends on the Exchangeable
Preferred Stock and the Internal Preferred Stock at any time so long
as such dividends are payable solely in shares of preferred stock
having terms identical to the Exchangeable Preferred Stock or the
Internal Preferred Stock; and
(f) so long as no Default or Event of Default shall have occurred and be
continuing or would result from such payment, after September 15,
2006, the Borrower may declare and pay scheduled cash dividends on
the Exchangeable Preferred Stock at the rate per annum equal to
thirteen and one-quarter of one percent (13.25%).
Notwithstanding anything in this ss.11.4 to the contrary, the
Borrower shall not declare or pay any cash dividends on the Internal
Preferred Stock at any time or pay any Distributions that would be used to
redeem the Senior Discount Notes or exchangeable debentures issued in
exchange for the Exchangeable Preferred Stock.
In addition, notwithstanding anything in this ss.11.4 to the
contrary, in the event that the requisite percentage of the Lenders have
consented to the Holding Company Reorganization, then following the
consummation of the Holding Company Reorganization and, in the case of
clauses (x)(i) and (y) below, so long as no Default or Event of Default
has occurred and is continuing or would result from such payments, and
subject to the proviso set forth at the end of clause (x), the Borrower
may make (x) cash Distributions to its parent holding company to (i) pay
debt service on the Senior Discount Notes and (ii) pay taxes attributable
to the operations of the Borrower and its Subsidiaries and HoldCo
Corporate Overhead Expenses, provided that under no circumstances shall
the Borrower make any cash Distributions to its parent holding company to
enable the payment of cash interest on the Senior Discount Notes prior to
September 15, 2006, (y) Distributions to its parent holding company to pay
scheduled dividends on preferred stock issued by its parent holding
company if the payment of such scheduled dividends would be permitted
under ss.11.4(c) if such preferred stock had been issued by the Borrower,
provided that (i) contemporaneously with the issuance of such preferred
stock, the Borrower received the net cash proceeds (net of costs and
expenses directly incurred in connection with such issuance) from such
issuance and (ii) the Borrower delivers to the Administrative Agent a duly
executed certificate substantially in the form of Exhibit G hereto, and
(z) Distributions to its parent holding company to satisfy such Person's
obligations to make payments permitted under ss.11.4(d)(i) and (ii) if the
Borrower would have been permitted to make such payments directly if the
Holding Company Reorganization had not occurred.
For the avoidance of doubt, all references in this ss.11.4 to the
Borrower shall refer to the Borrower prior to the Holding Company
Reorganization, and after the Holding Company Reorganization to the
Borrower if the Borrower continues as the primary obligor hereunder or to
any other Person who has (with the Lenders' prior written unanimous
consent which has not been obtained as of the date of the First Amendment)
assumed the obligations of the Borrower hereunder."
ss.6. Amendment to ss.12.1 of the Credit Agreement. The Credit Agreement
is hereby amended by deleting the text of ss.12.1 in its entirety and
substituting in lieu thereof the following new ss.12.1:
12.1. Total Leverage Ratio. The Borrower will not permit the Total
Leverage Ratio as of the last day of each fiscal quarter of the Borrower
ending during any period described in the table set forth below to exceed
the ratio set forth opposite such period in such table. For purposes of
calculating the Total Leverage Ratio solely for determining compliance
with this ss.12.1, for the period from and including May 31, 2001 through
the Upstream Date, there shall be subtracted from Consolidated Total
Funded Debt an amount equal to the Paydown Amount; provided that such
Paydown Amount is less than the cash Escrow Amount which shall be released
from escrow to Emmis Escrow pursuant to the terms of the Senior Discount
Note Indenture upon the earlier to occur of the Escrow Merger or the
conversion of the Senior Discount Notes to Exchangeable Preferred Stock.
--------------------------------------------------------
Period (inclusive of dates) Ratio
--------------------------------------------------------
--------------------------------------------------------
date hereof -- 5/31/01 7.25:1.00
--------------------------------------------------------
--------------------------------------------------------
6/1/01 -- 11/30/01 7.00:1.00
--------------------------------------------------------
--------------------------------------------------------
12/01/01 -- 2/28/02 6.90:1.00
--------------------------------------------------------
--------------------------------------------------------
3/01/02 -- 5/31/02 6.75:1.00
--------------------------------------------------------
--------------------------------------------------------
6/01/02 -- 8/31/02 6.50:1.00
--------------------------------------------------------
--------------------------------------------------------
9/01/02 -- 2/28/03 6.00:1.00
--------------------------------------------------------
--------------------------------------------------------
3/01/03 -- 8/31/03 5.50:1.00
--------------------------------------------------------
--------------------------------------------------------
9/01/03 -- 2/29/04 5.00:1.00
--------------------------------------------------------
--------------------------------------------------------
3/01/04 -- 8/31/04 4.50:1.00
--------------------------------------------------------
--------------------------------------------------------
Thereafter 4.00:1.00
--------------------------------------------------------
ss.7. Amendment to ss.12.2 of the Credit Agreement. The Credit Agreement
is hereby amended by deleting the text of ss.12.2 in its entirety and
substituting in lieu thereof the following new ss.12.2:
12.2. Senior Leverage Ratio. The Borrower will not permit the Senior
Leverage Ratio as of the last day of each fiscal quarter of the Borrower
ending during any period described in the table set forth below to exceed
the ratio set forth opposite such period in such table. For purposes of
calculating the Senior Leverage Ratio solely for determining compliance
with this ss.12.2, for the period from and including May 31, 2001 through
the Upstream Date, there shall be subtracted from Senior Funded Debt an
amount equal to the Paydown Amount; provided that such Paydown Amount is
less than the cash Escrow Amount which shall be released from escrow to
Emmis Escrow pursuant to the terms of the Senior Discount Note Indenture
upon the earlier to occur of the Escrow Merger or the conversion of the
Senior Discount Notes to Exchangeable Preferred Stock.
---------------------------------------------------------
Period (inclusive of dates) Ratio
---------------------------------------------------------
---------------------------------------------------------
date hereof -- 5/31/01 5.85:1.00
---------------------------------------------------------
---------------------------------------------------------
6/01/01 -- 8/31/01 5.75:1.00
---------------------------------------------------------
---------------------------------------------------------
9/01/01 -- 2/28/02 5.50:1.00
---------------------------------------------------------
---------------------------------------------------------
3/01/02 -- 8/31/02 5.25:1.00
---------------------------------------------------------
---------------------------------------------------------
9/01/02 -- 2/28/03 4.75:1.00
---------------------------------------------------------
---------------------------------------------------------
3/01/03 -- 8/31/03 4.25:1.00
---------------------------------------------------------
---------------------------------------------------------
9/01/03 -- 2/29/04 3.75:1.00
---------------------------------------------------------
---------------------------------------------------------
3/01/04 -- 8/31/04 3.25:1.00
---------------------------------------------------------
---------------------------------------------------------
Thereafter 3.00:1.00
---------------------------------------------------------
ss.8. Amendment to ss.15.1 of the Credit Agreement. The Credit Agreement
is hereby further amended by (a) deleting the word "or" following clause (v) of
such ss.15.1, (b) adding the following new clauses (x), (y) and (z) to such
ss.15.1:
"(x) the failure of the Senior Discount Notes to convert into the
Exchangeable Preferred Stock on or prior to July 25, 2001 if (i) the
Holding Company Reorganization has not occurred prior to such date in
accordance with the terms of this Credit Agreement, as amended, modified
or waived at such time (acknowledging that the Credit Agreement as in
effect on the date of the First Amendment would not permit the Holding
Company Reorganization) and (ii) the Senior Discount Notes have not become
the obligation of a holding company which owns one hundred percent (100%)
of the issued and outstanding Capital Stock of the Borrower;
(y) the Borrower does not prepay the Loans in an amount at least
equal to the Paydown Amount in accordance with ss.5.5 on or prior to July
26, 2001 using proceeds received by Emmis Escrow from the issuance of the
Senior Discount Notes following either the Escrow Merger or the
distributions required by ss.10.20; or
(z) following the Holding Company Reorganization, any "Default" or
"Event of Default" under the Senior Discount Notes shall have occurred;";
and (c) deleting the text "ss.15.1(g), ss.15.1(h) or ss.15.1(j)" set forth in
the last proviso of ss.15.1 and substituting in lieu thereof the text
"ss.15.1(g), ss.15.1(h), ss.15.1(j) or ss.15.1(z)".
ss.9. Amendment to ss.15.2 of the Credit Agreement. The Credit Agreement
is hereby further amended by deleting the text "ss.15.1(g), ss.15.1(h) or
ss.15.1(j)" set forth in the first sentence of ss.15.2 and substituting in lieu
thereof the text "ss.15.1(g), ss.15.1(h), ss.15.1(j) or ss.15.1(z)".
ss.10. Consent. The Borrower has notified the Administrative Agent that
pursuant to the definition of "Excluded Subsidiaries" set forth in ss.1.1 of the
Credit Agreement, the Borrower has designated two new Excluded Subsidiaries,
Emmis Escrow Holding Corporation ("Emmis Escrow Holding") and Emmis Escrow
Corporation ("Emmis Escrow"). The Borrower has informed the Agents and the
Lenders of its intention to merge each of Emmis Escrow Holding and Emmis Escrow
with and into the Borrower, with the Borrower being the surviving company, on or
prior to July 26, 2001 (the "Escrow Merger"). The Borrower has requested that
the Required Lenders consent to the Escrow Merger. Subject to the satisfaction
of each of the conditions to effectiveness set forth in ss.11 hereof, the
undersigned Lenders consent to the Escrow Merger provided that the Senior
Discount Notes contain terms and conditions substantially the same as those set
forth in the Confidential Offering Circular and the Senior Discount Note
Indenture.
ss.11. Conditions to Effectiveness. This Amendment shall become
---------- -- -------------
effective upon the satisfaction of each of the following conditions
precedent:
(a) the Administrative Agent shall have received a counterpart signature
page to this Amendment duly executed and delivered by the Borrower and each of
the Required Lenders;
(b) the Administrative Agent shall have received evidence reasonably
satisfactory to the Administrative Agent that all corporate action necessary for
the valid execution, delivery and performance by the Borrower, Emmis Escrow
Holding and Emmis Escrow, as the case may be, of (i) this Amendment and the
transactions contemplated hereby and (ii) each of the transactions contemplated
by the Confidential Offering Circular shall have been duly and effectively
taken;
(c) the Administrative Agent shall have received from the Borrower (i) a
copy, certified by a duly authorized officer of the Borrower to be true and
complete on the date hereof, of the Borrower's amended articles of incorporation
in effect on the date hereof, (ii) a copy, certified by a duly authorized
officer of the Borrower to be true and complete on the date hereof, of the
Senior Discount Note Indenture and all documents executed and delivered by the
Borrower in connection therewith, (iii) the Confidential Offering Circular, and
(iv) copies of all legal opinions executed and delivered by counsel to the
Borrower or its subsidiaries in connection with the issuance of the Senior
Discount Notes which opinions shall provide that the Agents and the Lenders may
rely on each such legal opinion (or if such legal opinions do not contain such a
provision, the Agents and the Lenders shall also receive a reliance letter
addressed to the Agents and the Lenders in form and substance reasonably
satisfactory with respect to each such legal opinion);
(d) the Administrative Agent shall have received from the Borrower
evidence satisfactory to the Administrative Agent that the gross proceeds
received by Emmis Escrow in cash from the issuance of the Senior Discount Notes
equals at least $200,000,000;
(e) the Borrower shall have delivered to the Administrative Agent an
opinion of counsel from (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, counsel to
the Borrower and its Subsidiaries and (ii) counsel to the Borrower and its
Subsidiaries in Indiana, each addressed to the Administrative Agent and the
Lenders and in form and substance reasonably satisfactory to the Administrative
Agent; and
(f) the Borrower shall have paid to the Administrative Agent for the pro
rata account of each of the Lenders which executes and delivers to the
Administrative Agent a counterpart signature page to this Amendment on or prior
to March 27, 2001, an amendment fee equal to one-tenth of one percent (0.10%) of
the aggregate amount of each such Lender's interest in the Term Loans and such
Lender's Revolving Credit Commitment.
ss.12. Affirmation of the Borrower. The Borrower hereby affirms all of its
Obligations under the Credit Agreement and under each of the other Loan
Documents to which it is a party and hereby affirms its absolute and
unconditional promise to pay to the Lenders the Loans and all other amounts due
under the Credit Agreement and the other Loan Documents. The Borrower hereby
represents, warrants and confirms that the Obligations are and remain secured
pursuant to the Security Documents.
ss.13. Representations and Warranties. The Borrower hereby
--------------- --- ----------
represents and warrants to the Lenders and the Administrative Agent as
follows:
(a) Representations and Warranties. Each of the representations and
warranties contained in ss.9 of the Credit Agreement were true and correct in
all material respects when made, and, after giving effect to this Amendment, are
true and correct in all material respects on and as of the date hereof, except
to the extent that such representations and warranties relate specifically to a
prior date.
(b) Enforceability. The execution and delivery by the Borrower of this
Amendment, and the performance by the Borrower of this Amendment and the Credit
Agreement, as amended hereby, are within the corporate authority of the Borrower
and have been duly authorized by all necessary corporate proceedings. This
Amendment and the Credit Agreement, as amended hereby, constitute valid and
legally binding obligations of the Borrower, enforceable against it in
accordance with their terms, except as limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or affecting the
enforcement of creditors' rights in general.
(c) No Default. No Default or Event of Default has occurred and is
continuing, and after giving effect to this Amendment, no Default or Event of
Default will result from the execution, delivery and performance by the Borrower
of this Amendment or from the consummation of the transactions contemplated
herein or by the Confidential Offering Circular or the Senior Discount Note
Indenture.
(d) Excluded Subsidiaries. Each of Emmis Escrow and Emmis Escrow Holding
is an "Unrestricted Subsidiary" under and as defined in the Subordinated Note
Indenture but is not a "Guarantor" under and as defined in the Subordinated Note
Indenture.
ss.14. No Other Amendments, etc. Except as expressly provided in this
Amendment, (a) all of the terms and conditions of the Credit Agreement and the
other Loan Documents remain unchanged, and (b) all of the terms and conditions
of the Credit Agreement, as amended hereby, and of the other Loan Documents are
hereby ratified and confirmed and remain in full force and effect. Nothing
herein shall be construed to be an amendment, consent or a waiver of any
requirements of the Borrower or of any other Person under the Credit Agreement
or any of the other Loan Documents except as expressly set forth herein. Nothing
in this Amendment shall be construed to imply any willingness on the part of the
Administrative Agent or the Lenders to grant any similar or future amendment,
consent or waiver of any of the terms and conditions of the Credit Agreement or
the other Loan Documents.
ss.15. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by each party on a separate counterpart, each of
which when so executed and delivered shall be an original, but all of which
together shall constitute one instrument. In proving this Amendment, it shall
not be necessary to produce or account for more than one such counterpart signed
by the party against whom enforcement is sought.
ss.16. Miscellaneous. This Amendment shall for all purposes be construed
in accordance with and governed by the laws of The State of New York. The
captions in this Amendment are for convenience of reference only and shall not
define or limit the provisions hereof. The Borrower agrees to pay to the
Administrative Agent, on demand by the Administrative Agent, all reasonable
out-of-pocket costs and expenses incurred or sustained by the Administrative
Agent in connection with the preparation of this Amendment, including reasonable
legal fees.
IN WITNESS WHEREOF, the undersigned have duly executed this Amendment as a
sealed instrument as of the date first set forth above.
EMMIS COMMUNICATIONS CORPORATION
By: _________________________
Name:
Title:
TORONTO DOMINION, (TEXAS), INC.,
individually and as Administrative Agent
By: _________________________
Name:
Title:
FIRST UNION NATIONAL BANK, individually and
as Syndication Agent
By: _________________________
Name:
Title:
FLEET NATIONAL BANK (f/k/a BankBoston,
N.A.), individually and as Documentation
Agent
By: _________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, individually and
as Co-Documentation Agent
By: _________________________
Name:
Title:
Signature blocks for other lenders omitted.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
EMMIS COMMUNICATIONS CORPORATION
Date: April 12, 2001 By: /s/ XXXXXX X. XXXXXX
Xxxxxx X. Xxxxxx
Executive Vice President
(Authorized Corporate Officer),
Chief Financial Officer and
Treasurer
